Sunday, January 24, 2010

On January 10, the California Supreme Court ruled on People v. Kelley that legislature’s limitations on medical marijuana possession and cultivation are unconstitutional, except for as to their defensive purposes.

In November of 1996 California voters passed Proposition 215 (“the CUA”) which provided official legal protection for the medical use of marijuana in California.The CUA decriminalized the cultivation, possession and use of marijuana by “seriously ill” patients with a doctor’s recommendation and also allows the cultivation and possession by a patient’s caregiver. Its stated purpose was to ensure that “seriously ill Californians had the right to obtain and use marijuana for medical purposes” when appropriate and recommended by a doctor, and to ensure that patients, their caregivers, and doctors “are not subject to criminal prosecution or sanction”. While the CUA was a landmark step, it is an unclear, principal driven statute, which caused a list of difficulties: one was that it established no way for medical marijuana patients to verify their legal status—patients were arrested because police officers were not required to trust that patient’s recommendations were valid.

Due to various problems with the CUA, Senate passed The Medical Marijuana Program Act (“the MMPA”) effective since January 1, 2004, which supplemented the CUA without supplanting it. Among other things, the MMPA set base guidelines for maximum medical marijuana possession. As base limits, they established the minimum quantities a county can set as possession limits; a county was free to set limits exceeding these. Illustrative are Humboldt County’s guidelines, which include an outdoor growth provision that one may not have more than 99 plants which must be contained in less than 100 square feet.

In Oral Argument for People v. Kelley, the Attorney General’s office conceded that the limits set by the MMPA are unconstitutional to limit a medical marijuana patient’s possession of marijuana as guaranteed under the CUA, and as to burdens placed on a patient’s legal defense as provided by the CUA. The Attorney General’s office asserted that instead that the limits should be upheld as guidelines for law enforcement to establish in an arrest situation that marijuana possessed by a patient is truly for medical purpose. The Supreme Court’s decision on People v. Kelley is in line with the Attorney General’s concession.

My understanding is that the court decided that the specific provision of the MMPA (section 11362.77) regarding possession limits could remain, but that it could only be used for defensive purposes by patients, because the limitations would otherwise contravene the intent behind the CUA. Basically, a patient or caregiver can use the fact that they possessed marijuana in accordance with the limits to prevent arrest or to show that their possession was “reasonably related to the patient’s current medical needs,” which is all that is required under the CUA (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549).However, patients or caregiver need not be within the limits to assert that their possession was reasonably for medical purposes.

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